2022 RLLR 138

Citation: 2022 RLLR 138
Tribunal: Refugee Protection Division
Date of Decision: August 9, 2022
Panel: Victoria Bragues
Counsel for the Claimant(s): Hart A Kaminker
Country: Iran
RPD Number: TB9-35046
Associated RPD Number(s): N/A
ATIP Number: A-2023-01023
ATIP Pages: N/A

 

REASONS FOR DECISION

 

[1]       XXXX (the claimant) claims refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[1]

 

[2]       On June 28, 2021, the Board received a notice from the minister outlining their intent to intervene in this claim on the issue of credibility, in writing.[2] The minister did not appear at the hearing, and therefore they did not question the claimant or provide submissions regarding the credibility of the claimant’s testimony at the hearing.

 

[3]       Counsel provided written submissions, as agreed upon at the hearing, which were received on July 25, 2022.

 

DETERMINATION

 

[4]       I find that the claimant is a Convention refugee for the following reasons.

 

ALLEGATIONS

 

[5]       The claimant’s allegations are found in his Basis of Claim (BOC) Form and the amendment made.[3] In summary, the claimant fears persecution at the hands of the Awami League due to his involvement and support of the Liberal Democratic Party (LDP).

 

[6]       He also raises a fear of persecution at the hands of the Bangladesh Nationalist Party (BNP-Jamat) due to his involvement in supporting the Awami League (AL) in the December 2008 elections; and the Jamat Ul Mujahideen Bangladeshi (JMB) due to his practice of the Christian faith in Canada. However, considering I have found this claim to be determinative based upon the claimant’s allegations related to his support of the LDP, only those allegations will be addressed.

 

IDENTITY

 

[7]       The claimant’ s personal identity and Bangladeshi citizenship have been established, on a balance of probabilities, through the supporting documentation filed, namely, a certified true copy of his passport, and a copy of his birth certificate.[4]

 

NEXUS

 

[8]       I find that there is a nexus between the harms that the claimant fears and a Convention ground, namely, real or imputed political opinion. Therefore, this claim will be assessed pursuant to section 96 of the IRPA. The test under section 96 is whether there is a serious possibility of persecution should the claimant returns to Bangladesh. I find that the claimant has met this test.

 

CREDIBILITY

 

[9]       In considering credibility, I have considered all the evidence, including the oral testimony and documentary evidence entered as exhibits. I have also considered the claimant’ s level of education,[5] and am cognizant of the difficulties faced by individuals in establishing their claims, including cultural factors, the milieu of the hearing room, and the stress inherent in responding to the questions put to them.

 

[10]     When a claimant swears the truth to certain allegations, this creates a presumption that they are true, unless there is reason to doubt their truthfulness.[6] The determination as to whether a claimant’ s evidence is credible is made on a balance of probabilities.[7] An important indicator of credibility is the consistency with which a witness tells his story, and the existence of inconsistencies can be a valid basis for finding a lack of credibility.

 

[11]     The claimant’s testimonies were consistent, credible, and straightforward with his evidence. There were no major inconsistencies or omissions that went to the heart of this claim, or that were not otherwise reasonably explained. As such, I find him to be a credible witness, and I believe what he has alleged.

 

[12]     The claimant submitted a number of documents in support of his claim, which include: a membership letter confirming the claimant’s involvement and support of the LDP, that he leased his property to the LDP, and the issues he faced as a result; copies of police complaints made following the incidents that occurred at the hands of Awami League goons; documentation confirming the claimant’s father’s kidnapping in June 2020 at the hands of Awami League goons; medical documentation confirming that his mother sought treatment following the May 13, 2020 incident; as well as letters of support from the claimant’ s family and relatives corroborating the issues the claimant faces at the hands of the Awami League.[8]

 

[13]     I find that, on a balance of probabilities, through his testimony and the supporting documents, the claimant has established that:

  • he began to support the LDP in XXXX 2008; he was involved in LDP functions, he XXXX
  • during the 2008 elections, because there was no local LDP candidate to vote for, he supported the Awami League in the elections; this led to him being targeted by the JMB, and ultimately led him to flee to the United States (US), where he lived for roughly 10 years without status;
  • in March 2020, the claimant inherited land; renovations were done to this property; one room was eventually leased to the LDP so they could use it as a local office; the claimant signed the lease agreement on May 1, 2020, from Canada;
  • as a result of this, the claimant and his family became known to the Awami League; on May 13, 2020, the claimant’s family home was attacked and the claimant’s mother required medical treatment; this was reported to the police, but to no avail;
  • the claimant’s parents attempted to relocated to Khulna; on May 20, 2020, the claimant’s parents were attacked;
  • they relocated to Sylhet; on June 21, 2020, the claimant’s father was kidnapped, tortured, and held for ransom; he was forced to sign unknown documents; he required medical treatment upon release;
  • the claimant’ s parents then relocated to and remain in hiding in Rajshahi, where they continue to receive phone threats from the Awami League;
  • his father has since passed away;
  • he has not supported the LDP while in the US or Canada, out of fear of reprisals to his family; though, he wishes to continue to support the LDP if he were to return to Bangladesh.

[14]     As noted above, the minister intervened on the issue of credibility, specifically related to the claimant’s allegations of fear at the hands of the BJP due to his support of the Awami League. First, the minister’s position is that the claimant provided unclear or conflicting evidence regarding his involvement with the Awami League, and that ultimately the claimant did not have any involvement with the Awami League and therefore he was not at risk when he left Bangladesh in        XXXX 2009.

 

[15]     I canvassed this issue at the hearing, and put these issues pointed out by the minister to the claimant. I found the claimant’ s testimony regarding these perceived discrepancies to be clear and reasonable. Specifically, the claimant was straightforward and spontaneous in his responses, and he clearly explained how he supported the Awami League solely for the purposes of the 2008 elections, because he did not have an LDP candidate to support at that time. In fact, I found that his testimony in this regard, supports the claimant’ s responses in the interview referenced by the minster. As such, I do not find that the claimant’s credibility is undermined in this regard.

 

[16]     Secondly, the minister submits that the claimant lived in the US without status for almost a decade, without claiming protection, which ultimately demonstrates a lack of subjective fear. I canvassed this issue at the hearing. The claimant explained that he was fearful of making a claim in the US, because he spoke to people within the community, as well as a couple of lawyers in the US, who advised him that he would not be successful. I find this explanation to be reasonable. I further find that this alone is insufficient to undermine the claimant’s subjective fear or credibility.

 

[17]     Notwithstanding I note that again, I found that this claim to be determinative based upon the claimant’ s fear resulting from his support of the LDP, and most of those allegations transpired after the claimant arrived in Canada. I do acknowledge that the claimant did not make mention of this fear or related allegations in his original BOC. However, as credibly explained by the claimant at the hearing, he only became aware that he should include these allegations after he met with his current counsel around February 2022. Notwithstanding this, I also note that the claimant indicates that he supported the LDP in his interview with an immigration officer in March of 2021. In consideration of all the evidence before me, I find that the claimant has established that he supported the LDP, and I do not draw any negative credibility inferences in this regard.

 

[18]     Based upon the claimant’s amended BOC, that he mentioned his support of the LDP in his interview with an immigration officer in March 2021, the supporting documentation file, and his credible testimony, I find that, on a balance of probabilities, he has established his subjective fear in this regard, and I believe what he has alleged, on a balance of probabilities.

 

OBJECTIVE BASIS

 

[19]     I find that the claimant’s fear in Bangladesh is supported by the objective evidence. First, the objective documentation contained in the National Documentation Package confirms that the Awami League is the ruling party in Bangladesh, and that they are known to take strong, strict or violent action against those who oppose them, including routine detentions, torture, extrajudicial killings by state agents.[9] The evidence also confirms that the Awami League and its auxiliary organisations are known to engage in criminal activities, including violence and extortion.

 

[20]     Secondly, the objective evidence is also overwhelming clear that corruption is an issue in Bangladesh generally, including within the police force and the judicial system.[10] Though the law provides for an independent judiciary, in practice, it is compromised. The United States Department of State reports that, “… magistrates, attorneys, and court officials demanded bribes from defendants in many cases, or courts ruled based on influence from or loyalty to political patronage networks.”[11] The Australian Department of Foreign Affairs and Trade states that “victims of abuse have limited avenues for effective recourse in cases where the perpetrator belongs to a state agency.”[12]

 

[21]     Finally, I do acknowledge that the objective documentation indicates that the LDP is a small political party, and less likely to be a concern for the ruling party.[13] However, it also specifically indicates that:

members are “likely” to receive the same treatment as members of other opposition parties “if and when they take part in political programme” … the Awami League government is “increasingly using imprisonment, detention without trial, and show trials to silence the opposition,” and expressed the opinion that since the BNP has been the target of political violence, the LDP likely has suffered the same…[14]

[22]     In this case, the claimant was directly supporting and providing office space to the LDP. He also established that he supported the LDP previously in Bangladesh in canvassing and events, and that he would continue to do so in Bangladesh.

 

[23]     In consideration of all the evidence before me, I find that on a balance of probabilities, the claimant has established an objective basis for their fear in Bangladesh. As the claimant has established their subjective fear and an objective basis for that fear, I find that he has established a well-founded fear of persecution, on a balance of probabilities.

 

STATE PROTECTION

 

[24]     Claimants are expected to exhaust all recourses of protection before making a claim, except in situations where the agents of the state are themselves the source of persecution.[15] Claimants cannot be expected to risk their lives in seeking ineffective protection.[16]

 

[25]     Considering that the agents of persecution in this claim are members of the Awami League, and that the Awami League is an agent of the state itself, I find that, on a balance of probabilities, the claimant has rebutted the presumption of state protection with clear and convincing evidence, and that adequate state protection would not be reasonably available to him, in his particular circumstances.

 

INTERNAL FLIGHT ALTERNATIVE

 

[26]     The test for an internal flight alternative (IFA) is two-fold, as set out by the Federal Court of Appeal in the case of Rasaratnam.[17] First, I must find that the claimant would be safe in this city, and secondly that it would be reasonable to expect that he relocates there. In order to render an IFA not viable, I must reject one of these prongs. I find that, on a balance of probabilities, the test for an IFA fails on the first prong in the present case.

 

[27]     The claimant has established that his agents of persecution is the Awami League, and therefore agents of the state. He has also established that they successfully located the claimant’s parents after they attempted to relocate to Khulna and Sylhet, and that his mother continues to receive threatening calls from Rajshahi. Therefore, I find that the claimant has established that his agent of persecution has the means and motivation to locate and harm him anywhere in Bangladesh, and that it would not be able to relocate anywhere in Bangladesh to escape the harm that he fears, on a balance of probabilities, and he has established that an IFA is not available to him.

 

CONCLUSION

 

[28]     In consideration of the totality of the evidence, I find that the claimant is a Convention refugee pursuant to section 96 of the IRPA. This claim is accepted.

 

(signed) V. Bragues

 

August 9, 2022

 

 

 

[1] The Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended, sections 96 and 97(1) [IRPA].

 

[2] Exhibit 5, Minister’s Notice of Intervention; and Exhibit 6, Minister’s Exhibits.

 

[3] Exhibits 2, Basis of Claim (BOC) Form; Exhibit 4, BOC Amendment.

 

[4] Exhibit 1, Claim referral information from CBSA/IRCC, Certified True Copy of Passport; and Exhibit 7, Personal Disclosure received July 11, 2022, at p. 1.

 

[5] Exhibit 1, Claim referral information from CBSA/IRCC, Schedule A Form.

 

[6] Maldonado, Pedro Enrique Juarez v. M.C.I. (F.C.A., no. A-450-79), Heald, Ryan, MacKay, November 19, 1979. Reported: Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R 34 (F.C.A.).

 

[7] Orelien, Joseph v. M.E.I. (F.C.A., no. A-993-90), Heald, Mahoney, Stone, November 22, 1991. Reported: Orelien v. Canada (Minister of Employment and Immigration) [1992] 1 F.C. 592 (C.A.); (1991), 15 Imm. L.R. (2d) 1 (F.C.A.).

 

[8] Exhibit 7, at pp. 2-4, 6-9, 13-14. 19, 24-26, 30-34.

 

[9] Exhibit 3, National Documentation Package (NDP) for Bangladesh, April 29, 2022, item 4.1.

 

[10] Ibid., item 1.17, 2.1, 2.2, and 7.1.

 

[11] Ibid., item 2.1.

 

[12] Ibid., item 1.17.

 

[13] Ibid., item 4.13.

 

[14] Ibid.

 

[15] Chaves, Alejandro Jose Martinez v. M.C.I. (F.C., no. IMM-603-04), Tremblay-Lamer, February 8, 2005; 2005 FC 193; see also Lopez Gonzalez, Jaqueline v. MC.I. (F.C., no. IMM-5321-10), Rennie, May 24, 2011; 2011 FC 59.

 

[16] Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85.

 

[17] Rasaratnam, Sivaganthan v. M.E.I. (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991. Reported: Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.).